Case Study with Risk Management Strategies Presented by HPSO and CNA
Medical malpractice claims may be asserted against any healthcare provider, including physical therapist and their employers. This case study involves a physical therapy firm.
For the Physical Therapist: Failure to perform an adequate patient assessment, Failure to report a patient’s condition to the referring practitioner, Failure to cease treatment with excessive/unexpected pains, Failure to recognize a medical emergency, Inaccurate and incomplete healthcare documentation, Failure to document according to standards promulgated by physical therapy professional associations, state practice acts and facility protocols.
For the Physical Therapy Owner: Failure to provide appropriate education for clinical staff. Failure to maintain a safe environment Failure to assure that clinical staff are qualified.
Indemnity Settlement Payment: Greater than $475,000
Legal Expenses: Greater than $125,000
(Monetary amounts represent only the payments made on behalf of the physical therapist and physical therapy firm.)
A 45 year-old woman suffered a fall at work. Immediately after the fall, she was taken to an emergency department (ED). The ED practitioner diagnosed her with a Grade three lateral right ankle sprain injury and referred her to an orthopedic practitioner. The orthopedic practitioner fitted her for a controlled ankle movement (CAM) boot and instructed her to be non-weight bearing until she returned to for her follow-up appointment in three weeks.
The patient was prescribed pain medication and physical therapy. Two days after her orthopedic appointment, the patient was seen by our insured physical therapist (PT) for her initial therapy assessment. The PT (co-defendant) noted the patient was wearing a CAM walker boot. The patient reported to be relatively healthy without any chronic or acute illness. She admitted to be a one-pack a day smoker for the past 30 years and had recently begun oral contraceptive medication to treat abnormal premenopausal menstrual bleeding. The patient complained of right calf pain, so the PT performed a Pratt Test to the right calf which was negative for increased symptoms. The patient indicated the pain could be from the walking boot, because it felt like a pulled muscle. The insured documented that the patient was going on a cruise in the near future and her goal was to ambulate without a walking cast for the cruise, but did not note the calf pain or negative Pratt Test results in the patient’s healthcare record.
On first day of physical therapy, the patient complained of continued right calf pain; however, she used her foot during therapy. The PT continued to believe that the walking boot was likely the cause of the patient’s calf pain. The insured examined the patient’s calf and it did not exhibit clinical signs of a deep vein thrombosis (DVT). Moreover, she could not elicit any pain upon performing a Pratt Test. The PT again failed to document the examination of the patient or her assessment of the calf.
On second day of therapy, the PT was concerned about patient’s presentation and comments while in the waiting room. The patient informed the PT that she had taken off her walking boot off at work. She ambulated most of the day without any support in order to try and speed up her recovery. During the short walk back to the exercise room, the patient became short of breath and had to stop to rest. The patient mentioned to the PT, “I don’t know what’s wrong with me today, I feel so tired.” The PT assessed the patient’s right calf area and found that it was softer than it had been the two prior examinations. The PT performed the Pratt test and again it did not elicit any signs of pain. As a result of the negative clinical evaluation, the insured continued with the patient’s therapy.
During the session, the patient performed three active range of motion exercises using her ankle. There were two exercises, grasping marbles with her toes and ambulating upstairs, that she was unable to perform. Upon completion of the therapy, the patient again became out of breath during the walk back to the waiting room.
While in the waiting room, the insured explained to the patient that she was very concerned about her condition and felt that she needed to be examined by a practitioner prior to her cruise. The patient response was that there was no reason for her to go to the doctor as they had not been listening to her. However, the PT insisted that she be seen by a physician because she was concerned about her shortness of breath, fatigue and complaints of calf pain.
Although the PT had this conversation with the patient, she failed to document her recommendations and patient’s response in the patient’s healthcare records. The only conversation documented in the patient’s healthcare record was, “The patient stated she will be on cruise for 14 days and would return to therapy after her vacation”.
Unfortunately, two days later the patient was found dead in her home. An autopsy revealed her cause of death to be an “acute pulmonary thromboembolism” with deep vein thrombosis of the right leg and a history of right ankle sprain.
Six months after the patient’s death, both the PT and the physical therapy business owner (co-defendant) received a pre-suit notice of intent to sue from the patient’s son (plaintiff).
Risk Management Comments
After the PT learned of the patient’s death, she documented the events that had occurred at the facility on the last day of the patient’s visit. This document was undated and unsigned. It stated that the PT was concerned about a possible DVT at the last visit and that she had urged the patient to be seen by a practitioner. During her deposition, the insured explained that she created the documentation in an effort to clarify and add information that was missing after learning that the patient had passed away.
Several PT defense experts were asked to review the claim and most were not supportive of the insured’s care. One expert criticized the PT for failing to document concurrently the patient’s need to be seen urgently by a medical practitioner. More problematically, the expert indicated that the patient’s complaints of increased pain in her calf, shortness of breath and increased fatigue with walking should have triggered the PT to halt all physical therapy treatment until the patient’s leg could be examined. The PT’s action of continuing with therapy put the patient at risk for dislodging the cl. A cardiovascular expert noted with the patient’s long history of smoking and taking birth control elevated her risk for DVT. Additionally, her risk was also increased with the use of a CAM walker boot. This immobility by the boot increased the likelihood of the blood pooling in the leg.
The expert also indicated that the Pratt test to examine whether the patient had a DVT was appropriate. However, the current research indicates that the test has a high false positive rate resulting in poor reliability. Even though the physical therapy business owner had never participated in the patient’s care, he was being sued due to the actions of the employed treating PT. Because the owner had few employees (less than 10), he had very few policies and procedures and had not provided any continuing education for his employees.
He had known his employees prior to hiring them and believed annual performance or competency reviews was unnecessary. The owner never received complaints from current or former patients. Prior to this claim, his business had positive remarks on all social media sites. However, despite having essential current healthcare business documentation, the defense of the PT practice owner was difficult.
Resolution
A cardiovascular expert noted with the patient’s long history of smoking and taking birth control elevated her risk for DVT. Additionally, her risk was also increased with the use of a CAM walker boot. This immobility by the boot increased the likelihood of the blood pooling in the leg.
The expert also indicated that the Pratt test to examine whether the patient had a DVT was appropriate. However, the current research indicates that the test has a high false positive rate resulting in poor reliability. Even though the physical therapy business owner had never participated in the patient’s care, he was being sued due to the actions of the employed treating PT. Because the owner had few employees (less than 10), he had very few policies and procedures and had not provided any continuing education for his employees.
He had known his employees prior to hiring them and believed annual performance or competency reviews was unnecessary. The owner never received complaints from current or former patients. Prior to this claim, his business had positive remarks on all social media sites. However, despite having essential current healthcare business documentation, the defense of the PT practice owner was difficult.
The possibility of a defense verdict was deemed to be less than 10 percent.
Defense counsel assessed the potential exposure/claim value of the case for all defendants as being between $500,000 and $750,000 with our insured identified as having all of the liability.
Risk Management Recommendations with regards to treating Physical Therapists:
- Recognize patients’ medical conditions, co-morbidities and any additional specific risk factors that may affect therapy.
- Notify the appropriate practitioner(s) of the patient’s clinical responses to therapy, and swiftly convey any signs or symptoms of physiological or psychological changes that could indicate a new pathological condition or a change in an existing condition.
- Document your patient care assessments, observations, communications and actions in an objective, timely, accurate, complete, appropriate and legible manner.
- Never alter a record for any reason or add anything to a healthcare record after the fact unless it is necessary for the patient’s care. If information must be added to the record, accurately label the late entry. However, never add anything to a record for any reason after a claim has been made. If additional information related to the patient’s care emerges after becoming aware of pending legal action, discuss the need for additional documentation with your manager, the organization’s risk manager and/or legal counsel.
Risk Management Recommendations with regards to Physical Therapy Practice Owners:
- Perform at least annual performance reviews for each employee, including a review of errors, “near misses”, document requirements compliance, existing skills and directly observed competencies. Provide physical therapy staff with coaching, mentoring, and clinical and system education as needed to ensure that patient safety requirements are satisfied.
- Ensure that clinical practices comply with standards endorsed by physical therapy professional associations, state practice acts and facility protocols.
- Provide appropriate clinical support for physical therapists, in compliance with supervisory or employment agreements. Encourage compliance with relevant legal, ethical and professional standards for clinical practice.